RETAIL STORE EMP. v. Great Atlantic & Pac. Tea Co.

• Decision Date: 19 October 1979
• Docket Number: Civ. No. K-79-1714.
• Citation: 480 F. Supp. 88
• Parties: RETAIL STORE EMPLOYEES UNION, LOCAL 400, UFCW, AFL-CIO; and Retail Store Employees Union, Local 692, UFCW, AFL-CIO v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
• Court: U.S. District Court — District of Maryland

480 F. Supp. 88

RETAIL STORE EMPLOYEES UNION, LOCAL 400, UFCW, AFL-CIO; and Retail Store Employees Union, Local 692, UFCW, AFL-CIO v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

Civ. No. K-79-1714.

United States District Court, D. Maryland.

October 19, 1979.

Ira M. Lechner, Joseph Semo, David B. Scholl, and Seifman & Lechner, P. C., Washington, D. C., and Donald M. Tannenbaum, Clinton, Md., for plaintiffs.

Jerome Powell, John Stephen Caflisch, Paul L. Landry and Reed Smith Shaw & McClay, Washington, D. C., and W. Shepherdson Abell, and Furey, Doolan & Abell, Chevy Chase, Md., for defendant.

FRANK A. KAUFMAN, District Judge.

Two locals of the Retail Store Employees Union, UFCW, AFL-CIO, Locals 400 and 692 (Unions) asked this Court to order The Great Atlantic & Pacific Tea Company, Inc. (Company) to submit certain claims to arbitration. Jurisdiction exists pursuant to section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, since the Company's activities affect interstate commerce.

Originally, the Unions asked this Court to enjoin the Company from opening certain stores and also to require the Company to arbitrate certain disputes with the Unions pursuant to the arbitration clauses of the two collective bargaining agreements. However, after this suit was commenced, the parties entered into a stipulation that any relief ordered in the Unions' favor would be given retrospective effect. At the same time as that stipulation was entered into, the Unions dropped their quest for any injunctive relief concerning the opening of the stores but pursued their quest for this Court forthwith to require arbitration.

One of the two collective bargaining agreements involved in this case covers the metropolitan Washington, D.C. area;¹ the other relates to the metropolitan Baltimore, Maryland area.² Article 2, section 2.2 of the collective bargaining agreement between the Washington local and the Company provides:

2.2 The Employer further agrees that if the Employer should establish a new food store, or stores, within the territories described in Paragraph 2.1, this agreement shall apply to such a new store or stores. In the event the Employer engages in Department or Discount type stores, then the Employer and the Union shall negotiate as to the terms for wages, hours and working conditions for employees working in such stores.

Article 2, sections 2.3 and 2.4 of the collective bargaining agreement between the Baltimore local and the Company provides:

2.3 The Employer further agrees that if the Employer should establish a new store or stores within the jurisdiction of the Union * * *, this Agreement shall apply to such new store or stores. In the event the Employer engages in department or discount type stores, then the Employer and the Union shall negotiate as to the terms for wages and hours for such employees.

In the event an Employer in the future engages in a department or discount type store, commonly known as a general merchandise store, and an agreement between the Union and the Employer cannot be concluded, then the provisions of Article 20, No Strike-No Lockout, shall not be binding upon the Union and the Employer.

2.4 Any and all types of Retail Food Markets of the Employer shall be covered by terms and conditions of this Agreement.

Article 20 in both collective bargaining agreements sets forth grievance and arbitration procedures.³

On or about July 7, 1979, the Company closed six of its stores in the Washington area which operated under the name of A & P and two of its stores in the Baltimore area which operated under that name. The Company announced that new food stores called "Plus Food Stores" would be opened, that those stores would differ somewhat from conventional retail stores, and that while those stores would essentially be retail food stores, they would offer more limited assortments than the stores operated under the name of A & P. The Plus Food Stores were to be opened in the same buildings as had been previously occupied by the closed stores which operated under the name of A & P.

The Unions contend that the Plus Food Stores are A & P stores in everything except name, and that, accordingly, pursuant to the provisions of the respective articles 4.4 of the two collective bargaining agreements, the laid-off workers from the A & P stores should be reinstated as employees in the Plus Food Stores.⁴ Alternatively, the Unions argue that even if the Plus Food Stores are not A & P stores, the Plus Food Stores are "new stores" within the meaning of certain provisions of the two collective bargaining agreements.⁵

Plus Food Stores are operated by a wholly owned subsidiary of A & P. The Company contends that the operations of that subsidiary are separate and distinct from the operations of the A & P stores and that the Plus Food Stores are not A & P stores. As to the "new stores" clauses, the Company contends that they are not applicable because the A & P and Plus Food operations are separate and distinct, but that if those clauses are applicable, the Unions have not demonstrated at this time that the respective locals represent the majority of the employees in those stores.

The arbitration clauses in the two collective bargaining agreements involved in this case are virtually identical. Those clauses provide for arbitration of all controversies, disputes or disagreements arising under the respective contracts except for disputes relating to liability for such wage claims as do not require interpretation of the contracts. The arbitration clauses are broad, as was the clause involved in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 576, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). Therein, Mr. Justice Douglas wrote (at 581-83, 80 S.Ct. at 1352):

Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement.

* * * * * *

An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.

In any case in which one party to a collective bargaining agreement seeks an order of a court requiring the other party to such agreement to submit a dispute to arbitration, the court must initially determine whether the parties have respectively bound themselves to arbitrate that dispute. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-47, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); cf. Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board, 417 U.S. 249, 256-60, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974). If the parties have so bound themselves, then the court must order the parties to arbitrate. Nolde Brothers, Inc. v. Local No. 358, Bakery & Confectionery Workers Union, 430 U.S. 243, 249-50, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977); Amalgamated Clothing & Textile Workers Union v. Ratner Corp., 602 F.2d 1363, 1371 (9th Cir. 1979); Lever Brothers Co. v. International Chemical Workers Union, Local 217, 554 F.2d 115, 119 (4th Cir. 1976). In Nolde, Mr. Chief Justice Burger, in the course of concluding that the employer was obligated to arbitrate a claim for severance pay despite the fact that the contract had been terminated, observed (430 U.S. at 250, 97 S.Ct. at 1071):

Indeed, since the parties contracted to submit "all grievances" to arbitration, our determination that the Union was "making a claim which on its face is governed by the contract" would end the matter had the contract not been terminated prior to the closing of the plant. Citation omitted.

In Lever Brothers, Judge Hall, after noting the teachings of Warrior & Gulf and commenting that "neither the contract in Warrior & Gulf, nor the contract in this case expressly excluded a particular grievance from arbitration," concluded that the grievance involved presented "a matter for consideration by the arbitrator. In this case, it cannot be said with positive assurance that the arbitration clause was not susceptible of an interpretation that covered the asserted dispute." 554 F.2d at 119.⁶

In the case at bar, the arbitration clauses in the two collective bargaining agreements are hardly susceptible of any interpretation other than that they cover the disputes between the parties concerning which the Unions seek herein an Order of this Court to arbitrate. In Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964), the union sought arbitration under a broad arbitration clause of a claim that the employer was improperly allocating work to members of another union. The employer in Carey refused to arbitrate, claiming that the controversy "presented a representation matter for the National Labor Relations Board." Id. at 262-63, 84 S.Ct. at 404. The case came to the Supreme Court from the Court of Appeals of New York. Writing for six members of the Supreme Court, Mr. Justice Douglas reversed the Court of Appeals of New York and held that the controversy was one which should be submitted to arbitration. In so doing, he wrote (at 263, 84 S.Ct. at 404):

We have here a so-called "jurisdictional" dispute involving two unions and the employer. But the term "jurisdictional" is not a word of a single meaning. In the setting of the present case this "jurisdictional" dispute could be one of two different, though related, species: either—(1) a controversy as to whether certain work should be performed by workers in one bargaining unit or those in another; or (2) a controversy as to which union should represent the employees doing particular work. If this controversy is considered to be the former, the National Labor Relations Act citation omitted does not purport to cover all phases and stages of it.

The Justice also noted (at 265, 84 S.Ct. at 404):

Grievance arbitration is one method of settling

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